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2022 DIGILAW 489 (GAU)

Padmadhar Tamuli v. State Of Assam

2022-05-11

AJIT BORTHAKUR

body2022
JUDGMENT : (Ajit Borthakur, J.) 1. Heard Ms. B. Sarma, learned Amicus Curiae for the appellant as well as Mr. D. Das, learned Addl. P.P., Assam appearing for the State respondent. 2. This appeal under Section 374 of the Code of Criminal Procedure ('Cr.P.C.' for short) is preferred against the Judgment and Order, dated 21.07.2017, passed by the learned Sessions Judge, Jorhat in Sessions Case No. 12(J-J)/15 whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 7 (seven) years and to pay fine of Rs. 10,000/- (Rupees Ten Thousand), in default, to suffer rigorous imprisonment for 6 (six) months under Section 304, Part II of the Indian Penal Code ('IPC' for short). PROSECUTION STORY: 3. The prosecution story, in brief, is that on 28.11.2014, one Madhurjya Jyoti Tamuli lodged an F.I.R. at Selenghat Police Outpost alleging, inter-alia, that on 27.11.2014 at about 8 a.m., a quarrel took place between his father, Numal Chandra Tamuli and the accused appellant while his father went to remove one bamboo pole fixed on the road in front of his house. During scuffle, the accused appellant inflicted a blow on the head of the informant's father with a bamboo stick causing serious injury. His father, however, escaped from the place of occurrence and then, he was shifted to Selenghat Primary Health Centre for treatment. Thereafter, while arrangement was being made for shifting him to Jorhat Medical College and Hospital for advanced treatment on 28.11.2014, he succumbed to his injury. INVESTIGATION & TRIAL: 4. On receipt of the above F.I.R., the then In-Charge, Selenghat Police Outpost forwarded the same to Teok Police Station, where it was registered as Teok P.S. Case No. 387/2014 under Section 302 of the IPC. After completion of investigation, the investigating officer laid a charge-sheet against the accused appellant under Section 302 of the IPC vide Teok P.S. charge-sheet No. 235/2014, dated 06.12.2014. On appearance of the accused appellant before the Court of learned Addl. C.J.M., Jorhat, the case was committed to the Court of learned Sessions Judge, Jorhat for trial. On 21.03.2015, the Court of learned Sessions Judge, Jorhat framed charge against the accused appellant under Section 302 of the IPC. The accused appellant pleaded not guilty and claimed to be tried. 5. In order to bring home the charge levelled against the accused appellant, the prosecution examined altogether 12 (twelve) witnesses. On 21.03.2015, the Court of learned Sessions Judge, Jorhat framed charge against the accused appellant under Section 302 of the IPC. The accused appellant pleaded not guilty and claimed to be tried. 5. In order to bring home the charge levelled against the accused appellant, the prosecution examined altogether 12 (twelve) witnesses. After closing the evidence of the prosecution side, the statement of the accused appellant under Section 313 Cr.P.C. was recorded. The accused appellant pleaded innocent and examined no witness in defence. After completion of trial, the learned Sessions Judge, Jorhat convicted and sentenced the accused appellant under Section 304, Part II of the IPC as stated above. EVIDENCE: 6. Now, let us look to the evidence on record. 7. P.W. 1, Madhurjya Jyoti Tamuli is the informant in the case. His version is that the occurrence took place on 27.11.2014 at about 8 a.m. At that time, he was present at their house and his father was on the road working for removal of a bamboo pole with bare hands. Suddenly, the accused appellant came along with his son Raju Tamuli and another relative and chased after him with a bamboo stick. The accused appellant and his son assaulted P.W. 1/informant's father on his head with a piece of bamboo. This incident was witnessed by the informant. Witnessing the incident, P.W. 1/informant rushed towards the spot and then, they chased after him too. The bamboo pole was tied with an electric pole belonged to the ASEB. The elder sister of P.W. 1/informant narrated the whole incident before the Gaonburha and thereupon, the latter informed the incident to police. When police arrived at the spot, P.W. 1/informant took his father to Selenghat Primary Health Centre on his motorcycle. After treatment in the said Primary Health Centre, the victim was taken back to his house in an ambulance. The attending doctor advised P.W. 1/informant's family to take the victim to Teok First Referral Unit. On the next day, when they were busy to shift him to Jorhat Medical College and Hospital, he succumbed to his injury. 8. P.W. 2, Jibeswar Tamuli, in his deposition, stated that both the accused and the deceased are his cousin brothers. The occurrence took place about a year ago. He was not present at the place of occurrence when the incident took place. 8. P.W. 2, Jibeswar Tamuli, in his deposition, stated that both the accused and the deceased are his cousin brothers. The occurrence took place about a year ago. He was not present at the place of occurrence when the incident took place. He only saw the deceased Numol Chandra Tamuli coming towards his house and later on, from the villagers, he came to know about the quarrel that had taken place. He did not notice any injury on the person of the deceased. 9. P.W. 3, Manashee Tamuli is the daughter of the deceased. Her version is that on the day of occurrence, that is, on 27.11.2014, her father went to uproot one bamboo pole fixed with an electric pole in the middle of the road. Then, an altercation took place between her father and the accused appellant. On hearing her father shouting for help, she immediately went to the place of occurrence and saw the accused inflicting a blow on the head of her father with an 'Uukhoon' from a close range. The brother of the accused namely, Jibeswar Tamuli, who also came to the place of occurrence, chased after her shouting that he would kill her too. Her father fell down on the ground. Out of fear, she ran to the house of the Gaonburha and called him to the place of occurrence. When they arrived at the place of occurrence, they saw the injured (deceased) lying on the ground and thereafter, with the help of her younger brother, they took him to their house. They saw blood oozing out of the wound on his head. At about 9 a.m., they took the injured turned deceased to Selenghat Mini PHC, where he was treated by the doctor. Thereafter, they took him back to their house. On the next day, when they were preparing for shifting the deceased to Teok FRU, he expired. The younger brother of P.W. 3 informed the police about the incident. During cross-examination, she stated that the accused appellant is her uncle and that at the time of occurrence, she did not notice any injury on the person of the accused. She further stated that the police did not examine her. 10. P.W. 4, Rajen Baruah is the Government Gaonburha. During cross-examination, she stated that the accused appellant is her uncle and that at the time of occurrence, she did not notice any injury on the person of the accused. She further stated that the police did not examine her. 10. P.W. 4, Rajen Baruah is the Government Gaonburha. His version is that on 27.11.2014 at about 6.30 a.m., one boy came to his house and informed that the deceased Numol Chandra Tamuli was lying on the ground in front of the house of the accused appellant and requested him to come there. He immediately went to the place of occurrence and witnessed Numol Chandra Tamuli sitting on the ground with injury on his head. He also saw the accused present in his house with injury on his abdomen. He requested both of them to visit a doctor for treatment. He further stated that the daughter of the deceased also visited his house in the morning, but at that time, he was not present. He informed the police about the incident. According to him, the incident took place due to erection of bamboo pole by the accused in the middle of the road. He further stated that a dao was taken over by the accused from the hand of the deceased, which was later on seized by police vide seizure list, Ext.- 3. On 28.11.2014, police also seized one 'Uukhoon' from the house of the accused, on being produced by him, which was later seized by police vide seizure list, Ext.-4. During cross-examination, he stated that when he arrived at the place of occurrence, he found the deceased in a position to speak and 2/3 persons were present there. He also noticed injury on the abdomen of the accused and the accused stated before him that the cut injury was inflicted by the deceased Numol Chandra Tamuli. The accused appellant further stated that to prevent the second dao blow, he whirled off one 'Uukhoon' which accidentally hit on the head of the deceased. The incident took place within the house compound of the accused. P.W. 4 also stated that the deceased Numol Chandra Tamuli was an arrogant person and that he was informed by the co-villagers before the incident that the deceased was causing nuisance in the locality due to his bad behaviour. 11. P.W. 5, Bikul Chutia and P.W. 6, Niren Chandra Gogoi are neighbours of the accused appellant. P.W. 4 also stated that the deceased Numol Chandra Tamuli was an arrogant person and that he was informed by the co-villagers before the incident that the deceased was causing nuisance in the locality due to his bad behaviour. 11. P.W. 5, Bikul Chutia and P.W. 6, Niren Chandra Gogoi are neighbours of the accused appellant. They stated that on 27.11.2014 at about 8 a.m., they heard shouts in the house of the accused and therefore, they went there. They noticed the deceased Numol Chandra Tamuli running out of the house of the accused appellant. When they arrived at the house of the accused appellant, the latter informed that the deceased Numol Chandra Tamuli after coming to his house inflicted dao blow on his abdomen. They also noticed cut injury on the abdomen of the accused appellant. 12. P.W. 7, Biswa Chutia stated that he knew both the accused and the deceased and his house is located about one kilometre away from the house of the deceased. He knew nothing about the incident. While he was proceeding towards the village road, he came across the police officer, who directed him to put his signature on a piece of paper. He accordingly put his signature on Ext.- 2, the Inquest Report. 13. P.W. 8, Rita Gogoi Tamuli is the daughter-in-law of the accused appellant, who resides in the same compound of the house of the accused. She stated that the incident was occurred about two years ago in front of their house. She heard her father-in-law shouting and immediately rushed to the spot. She witnessed the deceased going out of their house. She noticed blood oozing out from the left side of the abdomen of the accused appellant. The accused appellant informed her that the deceased Numol Chandra Tamuli assaulted him with a dao. 14. P.W. 9, Dr. Nitu Kumar Gogoi is the doctor, who performed autopsy over the dead body of the deceased Numol Chandra Tamuli on 29.11.2014. He stated that on that day, he was posted as Assistant Professor, Department of Forensic Medicine in Jorhat Medical College & Hospital and on police requisition, he performed autopsy over the dead body of the deceased. On examination over the dead body of the deceased, he found as follows- 'A male dead body of average built of swarthy complexion wearing a brown sweater and white pant. Eyes and mouth closed. On examination over the dead body of the deceased, he found as follows- 'A male dead body of average built of swarthy complexion wearing a brown sweater and white pant. Eyes and mouth closed. Body is cold on touch. Rigor-mortis present. Injuries:- i. Stitch wound of size 6 cm over the vertex of head. On removal of the stitches adjacent scalp tissues are contused with depressed comminuted fracture of parietal bones of the skull. N.B.:- Above mentioned injuries contain adherent blood clot over wound margins which resist washing by running water. MARKS OF LIGATURE ON NECK DISSECTION ETC. No ligature mark around the neck. On dissection, neck tissues are healthy. SCALP, SKULL & VERTEBRAE - All are healthy. Scalp & skull - as described. MEMBRANE - congested, subdural haemorrhage present over both cerebral hemispheres. BRAIN AND SPINAL CORD - Brain congested, subarachnoid haemorrhage over cerebral hemispheres. Spinal cord not examined. LIVER, SPLEEN, KIDNEYS AND BLADDER-Healthy and congested. WALLS, RIBS & CARTILAGE-All are healthy. ORGANS OF GENERATION, EXTEMA & INTERNAL-Healthy. WALLS, PERETONEUM, MOUTH, PHARYNX AND OESOPHAGUS-All are healthy. STOMACH AND ITS CONTENTS-Healthy, contains fluid matter without any characteristic smell. SMALL INTESTINE AND ITS CONTENTS-Healthy contains fluid matter. LARGE INTESTINE AND ITS CONTENTS-Healthy contains gases and fecal matters. PLEURAE - Healthy. RIGHT AND LEFT LUNG - Healthy. HEART - Healthy and empty. MORE DETAILED DESCRIPTION OF INJURY OR DISEASE - NIL In my opinion, the cause of death was due to coma as a result of ante-mortem head injury suffered by the deceased which was caused by blunt weapon which was homicidal in nature. Approximate time since death is approximately 18 to 24 hours.' During cross-examination, P.W. 9 stated that the injury suffered by the deceased could not be caused due to fall on hard substance. It was unlikely that the deceased had fallen on hard substance and resultantly received the injury over head. The injury was a stitched wound. 15. P.W. 10, Dr. Afajut Uddin Ahmed is the Medical & Health Officer No- 1 of Selenghat Primary Health Centre, who examined the accused appellant on 27.11.2014 as per police requisition. He stated that on examination, he found one injury of 12 cm length on the left lateral side of the abdomen, which was simple and caused by sharp weapon. 16. P.W. 11, Dipa Chetia is the daughter of the accused appellant. He stated that on examination, he found one injury of 12 cm length on the left lateral side of the abdomen, which was simple and caused by sharp weapon. 16. P.W. 11, Dipa Chetia is the daughter of the accused appellant. Her version is that on the day of the incident, which occurred about two years ago, she was present in her matrimonial home. On hearing hue and cry in the house of her father, she went there and saw her father sustaining bleeding injury on his abdomen. Her father stated before her that the deceased Numal Tamuli had inflicted the aforesaid injury. 17. P.W. 12, S.I. Purna Jyoti Kalita is the investigating officer in the case. He deposed that on 27.11.2014 he was posted at Selenghat Police Outpost and on that day at about 8.15 a.m., he made G.D. Entry No. 565, dated 27.11.2014 vide Ext.-7 after receiving information from the accused appellant, who came in a distressed condition with one person. He further stated that after sending the injured Padmadhar Tamuli, the accused appellant herein, to hospital for medical treatment, he went to the place of occurrence and arrived at the house of the deceased Numol Chandra Tamuli, who was not in a position to speak at that moment. 18. P.W. 12 further deposed that the doctor of Selenghat F.R.U. after examining the injured (deceased) advised his son to take him to Jorhat Medical College & Hospital for advanced medical treatment. However, his son took him back to his house and on 28.11.2014 at about 3.30 p.m. he expired. On receipt of the aforesaid information, he went to the house of the deceased and held inquest over the dead body in presence of witnesses vide Ext.-2, the Inquest Report. He also seized one dao from the house of the accused in presence of witnesses vide Ext.- 3 and one 'Uukhoon' from the place of occurrence vide Ext.-4, the seizure list. P.W. 1, Madhurjya Jyoti Tamuli lodged an F.I.R. at Selenghat Police Outpost, which was forwarded to Teok P.S. for registration of a case. Thereafter, he was entrusted with the charge of investigation. He examined the witnesses who were acquainted with the facts and circumstances of the case and drew up a Sketch Map of the place of occurrence with index vide Ext. 8. On completion of investigation, he submitted charge-sheet against the accused appellant on 06.12.2014. Thereafter, he was entrusted with the charge of investigation. He examined the witnesses who were acquainted with the facts and circumstances of the case and drew up a Sketch Map of the place of occurrence with index vide Ext. 8. On completion of investigation, he submitted charge-sheet against the accused appellant on 06.12.2014. During cross-examination, he, inter-alia, stated that he sent the accused appellant to the hospital for treatment after witnessing injury on his abdomen. ANALYSIS OF EVIDENCE [Two Sets of Evidence]: 19. A perusal of the above evidence of the prosecution witnesses, it is revealed that there are two sets of evidence giving vent to two different stories of the alleged occurrence, one implicating the accused appellant with the offence while the other set of evidence attributed to the initial provocative conduct of aggression by the deceased. P.W. 1, the son of the deceased and P.W. 3, the daughter of the deceased, who claimed to be the eyewitnesses to the occurrence supported the story narrated in the F.I.R. vide Ext. 1 lodged by P.W.1. P.W. 4, the Government Gaonburha, P.W. 5 and P.W. 6, who are independent witnesses hailing from the same locality of the deceased and the accused as well as P.W. 8, the daughter-in-law of the accused attributed initiation of provocation by the deceased, who allegedly assaulted the accused at his home with a dao causing cut injury over his abdomen. 20. As stated above, P.W. 9, the autopsy surgeon, who performed the postmortem examination on the body of the deceased Normal Tamuli, on 29.11.2014 held the opinion that the cause of death of him was the injury sustained on head caused by blunt weapon, which was homicidal in nature, vide Ext. 5, the post-mortem examination report. On the other hand, P.W. 10, the doctor, who examined the accused appellant, aged about 63 years, on 27.11.2014, that is, on the date of occurrence itself, held the opinion that the injury which he sustained on the left lateral side of the abdomen was simple in nature caused by sharp weapon vide Ext. 6, the injury report. 21. Now, the relevant question is how the deceased and the accused appellant sustained the above injuries. It may be pointed out that in criminal trial, generally the burden is throughout on the prosecution to prove the guilt of the accused beyond reasonable doubt, which never shifts to the defence. 6, the injury report. 21. Now, the relevant question is how the deceased and the accused appellant sustained the above injuries. It may be pointed out that in criminal trial, generally the burden is throughout on the prosecution to prove the guilt of the accused beyond reasonable doubt, which never shifts to the defence. In the instant case, the medical evidence of P.W. 10, as stated above, found sharp cut simple injury on the abdomen of the accused. Therefore, besides proving the case against the accused appellant, the prosecution must have explained the circumstances as to how he received such sharp cut wound. The accused in his statement under Section 313 Cr.P.C. took the stand as extracted hereinbelow- 'I erected bamboo on the extreme side of road to support electrical line. Deceased cut the bamboo. On being asked, he threatened me to cut and caused injury over my chest. When he tried to assault me again I defended myself from 'Uukhoon' from his assault and I cannot say where it hit the deceased but his dao fell down on the ground. Then he went out and his dao remained in my house.' 22. On scrutiny of the evidence of P.Ws 1 and 3, the son and daughter of the deceased respectively, who claimed to have witnessed the occurrence, reveals that on 27.11.2014 at about 8 a.m., while their deceased father was removing a bamboo pole that was fixed on the road, the accused and his son Raju Tamuli and their another relative chased after their father with one stick and assaulted on his head. As a result, the deceased fell down. Thereafter, they chased after him (P.W. 1) and P.W. 3, who, on hearing the hue and cry of their father rushed to the place of occurrence. P.W. 3 specifically identified the weapon of offence, one 'Uukhoon' used by the accused to assault the deceased. The aforesaid incident was forthwith reported to the Village Headman (P.W. 4), whereupon he came to the place of occurrence. On the following day, that is, on 28.11.2014, their injured father died at home, while they were making arrangement to shift him to Jorhat Medical College and Hospital/Teok FRU. Contradicting his evidence-in-chief, P.W. 1 admitted in cross-examination that he did not state before police that the accused and his son dealt bamboo blow on the head of his father. On the following day, that is, on 28.11.2014, their injured father died at home, while they were making arrangement to shift him to Jorhat Medical College and Hospital/Teok FRU. Contradicting his evidence-in-chief, P.W. 1 admitted in cross-examination that he did not state before police that the accused and his son dealt bamboo blow on the head of his father. Their (P.Ws 1 and 3) evidence shows that the accused appellant is their related uncle and adjacent resident. 23. Turning to the evidence of P.W. 4, the Village Headman, it is noticed that on receipt of the information, he went to the place of occurrence and found the deceased sitting on the ground sustaining head injury, while the accused at his home bearing cut wound on his abdomen. His evidence further reveals that the accused snatched away one dao from the hand of the injured (later died), which was seized by police vide Ext. 3 and seized one 'Uukhoon' from the house of the accused vide Ext. 4, on being procured by the accused. According to him (P.W. 4), the incident occurred due to dispute between the deceased and the accused regarding fixing of a bamboo pole in the middle of the road by the latter and the incident took place within the house compound of the accused. Interestingly, the Village Headman (P.W. 4) in his cross-examination unequivocally stated that by nature the deceased was arrogant and impatient and had created nuisance in the locality. Thus, P.W. 4, the government Village Headman, who is a public servant responsible for maintaining law and order in his village area, has firmly withstood the test of cross-examination and therefore, he being a public servant, his evidence carries a special significance of fairness and reliability in the case, which cannot be ignored. Tendering circumstantial corroborative testimony to the testimony of P.W. 4, the Village Headman, P.Ws 5, 6 and 8, the neighbours stated to have seen the deceased running away from the house of the accused and P.W. 11 stated to have seen the cut wound sustained by accused appellant on his abdomen attributing it to have caused by the deceased. 24. Regarding the place of occurrence, there is clear evidence that the incident of assault had actually taken place within the house compound of the accused, which is indicated in the sketch map vide Ext. 8 prepared by the investigating officer (P.W. 12). 24. Regarding the place of occurrence, there is clear evidence that the incident of assault had actually taken place within the house compound of the accused, which is indicated in the sketch map vide Ext. 8 prepared by the investigating officer (P.W. 12). It is also seen from the evidence of P.W. 12 that he seized both the alleged weapons of offence from the place of occurrence, that is, the house of the accused, but not exhibited in the case for identification by the P.Ws. 25. On a careful scrutiny of the evidence led by the prosecution, it is amply clear, as observed by the learned trial Court, that the incident of assault between the accused and the deceased was occurred all on a sudden within the house compound of the accused appellant indicating the deceased's initiation of provocation. There is no specific convincing evidence to show beyond doubt that the accused had intentionally caused hurt on the person of the deceased, which resulted in his death on the following day. CONCLUSION: 26. For the above stated reasons, this Court is of the opinion that as there are two sets of evidence, one of which is going in favour of the accused's innocence and on the other hand, as no accused can be held guilty of offence based on conjecture and surmise, this Court has no option but to acquit him of the offence. Accordingly, it is held that the prosecution has failed to prove the offence under Section 304, Part II of the IPC beyond all reasonable doubt. 27. Resultantly, the appeal stands allowed. 28. The impugned judgment and order of conviction of the accused appellant is set aside and he is acquitted of the offence under Section 304, Part II of the IPC and set at liberty giving the benefit of doubt. 29. Release the accused forthwith. 30. Return the L.C.R. Appeal stands disposed of.